The Mediator’s Role In Positional Bargaining – Part 1

In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle. This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution.

If, in fact, negotiations in mediation become an exchange of offers and demands that (hopefully) are moving toward each other, what is the value added by a mediator? Can’t the parties simply exchange these numbers without the benefit of mediation? As a practicing litigator and mediator, the theoretical answer may be yes but in practice negotiations rarely progress without an active, neutral intermediary. Given the practical reality, how does mediation and a good mediator affect the dynamic so profoundly?

In my experience, the primary value of mediation is that it facilitates the flow of information. We start with the premise that in the absence of some legitimate opportunity for resolution there is no reason for a litigant to share facts or their potential significance with the other side prior to trial. In addition, there are plenty of reasons to hold back. One of the mediator’s most important roles then is to help litigants understand the pros and cons of sharing information. Every litigator has faced the critical question of whether to play an important card at mediation in the hope of settlement when that card is better held close until trial if the case does not settle.

The strategic decision to divulge or not divulge key pieces of information is obviously a decision for the parties and their counsel. Mediators will always favor full disclosure as it is more likely to lead to settlement. However, mediators can facilitate this process by helping analyze the potential impact on the negotiations of the disclosure and the impact at trial as well as help analyze the impact of the timing of any disclosure on the settlement negotiations.